Legally Insane

Yes, WA has way too many laws. But "free bleeding S&M" laws in the bedroom and digitally altered vaginas are just the tip of the wacky-law iceberg...

Urban folklore, ancient history, and Internet chat rooms: they’ve all got something to say about Western Australia’s legal oddities. The veracity of some is murky (we can’t be sure that, in the absence of a toilet, you can legally urinate on the rear left wheel of your car) and, thankfully, a few of the creepier ones have been repealed (until 1882 the age of consent was 10. Ick). But the truth is, our legal system is as crazy as ever. From rules about toilet seats in bars to restrictions on the portrayal of vaginas in magazines, you can get done for the oddest of things.

Let’s start with the roads. Did you know you could be hit with a fine for not giving way to a restive horse? And we’re not talking about a nag on its last legs, but a beast wilfully ‘resisting control’. No? What about that good old Aussie gesture of flashing your lights to signal a speed camera? Illegal, too. And those attachment issues you have with your dog could get bothersome – drive with little Fido on your lap and you risk an on-the-spot fine.

But we reckon one of the strangest traffic offences involves driving a vehicle that’s not a vehicle at all. Operating a motor vehicle while under the influence is sadly a common offence... but a motorised esky? A Sorrento man pinged for the offence faces trial later this year, but we wonder if the precedent was set by an esky-pade back in 2011. “I had to consult the statute to satisfy myself that the esky is indeed a vehicle,” was what judge John Parker had to say when he convicted a 23-year-old Noosa hoon for taking his esky-on-wheels for a ‘test run’ under the influence.

“It is an unfortunate situation,” he went on. “If he’d been drunk on a horse he’d have been okay.” Earlier this year, a Queensland man was charged with a drink driving offence for taking his cooler for a whirl on a bike path, while last year a NSW fellow escaped conviction for riding his on a drunken Macca’s run. Yep, only in Australia.

And think what happens in the bedroom should stay there? The law says otherwise. In the murky underworld of S&M, WA law has some pretty cut-and-dried views. Notably, sadomasochistic activities causing injuries that break “both the dermis and the epidermis and lead to free bleeding” (read: cuts) are no-nos. Other states (apart from Queensland, who’s with us) take context into account, considering, for example, whether or not the injuries interfere with the health or comfort of the masochist and are not merely transient or trifling.

Then there’s the curious Australian law that says pics of vaginas must be digitally altered to ensure only ‘discreet genitalia’ is portrayed. This stipulation means it’s become the standard in nudie mags to have vaginas ‘healed to a single crease’ (as one graphic designer oh-so-creepily put it in a 2011 doco aired on ABC’s Hungry Beast, which took the phrase as its title). The doco explored the idea that this unnatural perpetuation of what a vagina, well, really looks like is responsible for the rise of labiaplasty in young women.

“I think the law was intended to stop splayed-leg photographs, however the way it is being interpreted is to prevent any picture where the inner labia is visible,” says Kirsten Drysdale, the ABC reporter behind Healed to a Crease. “That stops a whole wave of the female population from having their body depicted in an otherwise perfectly acceptable code. Basically, I think it discriminates against people of a particular body type.”

According to Joseph Fernandez, head of Mass Communication at Curtin University and expert on the law, it’s difficult to make a call in the areas of nudity, obscenity and indecency. “Often the standard applied in deciding whether something has crossed the line is what a reasonable person would make of it,” he says. “As a result, the editor or publisher makes a call on where the boundaries lie and – surprise, surprise – they don’t always come to the same conclusions.”

But that may well be better than leaving it to the courts. They’re prone to making some dubious decisions – like docking a woman’s widow pension because she was too pretty. Say what? West Australian Teresa de Sales, whose husband died in a tragic drowning accident in 1990, had her compensation reduced by 20 per cent in 2002 on the grounds she was too attractive. It’s thanks to an archaic legal provision from the 1800s that allows judges to apply a discount to compensation according to what they reckon a woman’s remarriage prospects might be. The practice springs from England, but the Brits were sensible enough to repeal it. In Australia, on the other hand, it lives on – except in the Northern Territory.

While we’re all fired up, let’s talk liquor licensing. In the infamously crazy land of WA liquor licensing, it’s hard enough to be granted the paperwork – but it might be even harder to keep it, what with the long list of obscure stipulations to which venues are bound. Take the Cheeky Sparrow in Northbridge. It was one of the lucky few that did receive a liquor licence, but not without some draconian conditions. So-called emotive words like ‘shooters’, ‘shots’ and ‘bombs’ are prohibited (lest they incite punters into a word-drunk frenzy?). There are also strict guidelines on the kind of seating allowed (ottomans); the way the seats are arranged (get caught moving them to make way for a dance floor and you’ll have your licence instantly revoked); and on food availability (pizzas must be available from noon to 10pm – and not just any old margherita, mind you, we’re talking gourmet).

And then there are the regulations for toilet seats: “There’s requirements around the types of toilets a place is allowed to have – porcelain versus stainless steel,” says Bradley Woods, CEO of the Australian Hotels Association WA.

The law has just two words to say about double shots: dream on. “If someone wants a double shot of a good scotch whisky, they’re limited to 50ml,” says Bradley. “There was even an attempt at one stage to limit it to 30ml. In other states there are no restrictions on that.”

And, in WA, happy hours are anything but. Bars and venues offering two-for-one deals are forbidden from advertising them. “It comes down to an individual’s consumption; it’s silly to conclude that if a product’s offered cheaper to entice people to go to the venue, it’s an enticement to get drunk,” says Bradley. “It’s like saying you’re not allowed to advertise full-fat potato chips publicly because it will encourage people to binge eat.” (Granted, we do have an obesity epidemic. But since when did one too many crisps cause a road crash or a deadly case of domestic violence?)

WA law also seems to reflect the idea that skolling a Jäger-bomb at the stroke of midnight will turn a human being into a well-oiled pumpkin, with the sale of energy drinks mixed with alcohol strictly prohibited after 12. “There’s no scientific evidence to show that after midnight people’s consumption or absorption of energy drinks changes, or that there’s a demonstrable change in behaviour,” says Bradley. “It’s a subjective view that’s been put forward by the WA Police based on a couple of officers’ personal views. The customer can purchase an energy drink and they can purchase alcohol themselves, but we’re not allowed to mix it for them. It’s extremely arbitrary.”

And don’t even think of crushing a beer between your breasts if you work in a bar (err, because that would be a natural inclination). In 2007, a Pinjarra barmaid was fined $1000 for this breast-defying act, a breach of License Conditions under the Liquor Control Act, while her co-worker copped $500 for “assisting the commission of a breaching act” by hanging spoons off her nipples.

Last year, some of WA’s outdated retail laws made headlines further afield when Woolworths appealed to the State Government to repeal them. Our fave? The law outlined in the 1988 Retail Trading Hours Regulations stating petrol stations can sell cigarettes – but not nicotine patches – before 8am on Mondays, and can sell pantyhose – but not underpants – after 9pm on Thursdays. Riiiight.

“It’s difficult to understand why we still have restrictions on what products Perth retailers can sell,” says Deirdre Wilmott, CEO of Chamber of Commerce and Industry of Western Australia. “We see the ridiculous circumstance where depending on the time of day a hardware store can sell electrical fittings, but not decorative light fittings, or a newsagent or bookshop being able to sell educational toys, but not computer games,” she says.

Retail trading law also has Kmart trading 24 hours a day in Eaton near Bunbury, but restricted to trading between 11am and 5pm on Sundays in the Perth CBD.

“Our retail trading laws are a joke,” says Joseph Fernandez. “All sorts of outdated and nonsensical justifications are trotted out for the various discrepancies. The government is clearly out of step with the direction taken in many thriving economic hubs. One reason for this chaotic state of affairs is parliament is good at making law but very slow to address outdated law or fix inconsistencies in the law.”

Speaking of outdated laws, we couldn’t help but notice that we could be fined $6000 for challenging someone to a duel. Beyond medieval reenactment clubs, it’s hard to picture a legitimate scenario for this. Still, there’s no underestimating the reach of Game of Thrones…

It’s also illegal to own bulletproof clothing. But Joseph reckons the chances of someone getting pinged for it would be low unless they were aiding the commission of crime. “I would be very surprised if someone who had such clothing lived a crime-free life, did not commit any crime that could be linked to owning the bulletproof clothing, and was actually charged with this offence while wearing it when out game hunting in order to avoid being accidentally hit by a fellow hunter,” says Joseph. “If such a person were charged in the absence of any other offence, it would be an example of law being an ass.”